Saturday, May 19, 2007


Role of the Attorney General in the Unitary Executive

Advisors to President Bush argue in favor of the “unitary executive” as the model for the American Presidency. There is some support in the federal constitution for such an interpretation. In contrast to a typical State constitution (e.g., the California State Constitution) the federal constitution gives the President the power to choose the various heads of Departments. In particular the Attorney General is chosen by the President. In California and most other States, the Attorney General is elected. The Attorney General of a State is not necessarily a member of the same Party as the Governor. We have an example today in California, with Republican Arnold Schwarzenegger as Governor and Democrat Jerry Brown, a former governor, as Attorney General.

Until the emergence of a possible scandal in the Bush Administration’s firing of several US attorneys, perhaps for political gain, I looked askance at States in which many of the heads of government departments were elected instead of appointed. Why shouldn’t States be more like our central government? Why, in California, should the Treasurer, the Controller, the Attorney General, the Secretary of State, and other officials be elected rather than appointed by the Governor?

Now, I know. A few weeks ago some pundit on television pointed out that the Attorney General of the United States is supposed to work for the American People and not for the political advisors to the President. I have learned that many career lawyers in the Department of Justice have resigned since the appointment of Alberto Gonzales to be the Attorney General. It is reported (I can’t cite any references) that morale among the remaining career lawyers is low, due to the feeling that the department is being politicized and that the path to job safety lies in pleasing the political consultants of Mr. Bush rather than in impartial pursuit of justice. Gonzales apparently feels that his primary obligation is to George W. Bush rather than to the American People.

This is a situation up with which we should not put. Absent any change in the present procedure for choosing and confirming Attorney Generals, the Senate must be much more skeptical of Presidential nominees for the position. The Justice Department must not become a fruitful target for political appointees. The President’s personal political philosophy must not be imposed on the non-political career lawyers of the Department.

A desirable change would be to make the office of Attorney General non-partisan and permanent, like the director of the FBI. Because of the special nature of the Department of Justice, the leader should not be changed to suit the philosophical bent of a new Administration.

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